Electronic Press

Opinions & Commentaries

438 U.S. 726 (1978) FEDERAL COMMUNICATIONS COMMISSION v. PACIFICA FOUNDATION ET AL. No. 77-528. Supreme Court of United States. Argued April 18, 19, 1978. Decided July 3, 1978. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.*728 Joseph A. Marino argued the cause for petitioner. With him on the briefs were Robert R. Bruce and Daniel M. Armstrong.Harry M. Plotkin argued the cause for respondent Pacifica Foundation. With him on the brief were David Tillotson and Harry F. Cole. Louis F. Claiborne argued the cause for *729 the United States, a respondent […]

The issue before us is the constitutionality of § 223(b) of the Communications Act of 1934. 47 U. S. C. § 223(b) (1982 ed., Supp. V). The statute, as amended in 1988, imposes an outright ban on indecent as well as obscene interstate commercial telephone messages. The District Court upheld the prohibition against obscene interstate telephone communications for commercial purposes, but enjoined the enforcement of the statute insofar as it applied to indecent messages. We affirm the District Court in both respects.

Congress in 1992 passed the Cable Television Consumer Protection and Competition Act, which required, among other things, that cable television systems carry local broadcast stations. Several cable operators filed suit, claiming that the legislation violated the freedoms of speech and of the press guaranteed by the First Amendment. The district court held that the "must-carry" provisions of the Act were constitutional.
The extent to which the government can regulate speech often depends upon whether the regulation is content-based or content-neutral. Content based restrictions must be narrowly tailored to serve a compelling governmental interest, while content-neutral regulations need only reasonably advance a substantial state interest. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).

Section 10 of the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. _ 532, regulates indecent programming on local access cable television channels. Indecent speech is speech that, while not obscene, describes or depicts sexual or excretory activities or organs in an offensive manner. Local access channels are those channels set aside by the cable operator for use by persons not affiliated with the operator. The operator is prohibited from exercising any editorial control over these channels. Local access channels usually either are leased or are the "public, educational, or governmental" channels that a local government requires the operator to set aside as partial consideration for the operator's right to install cables under city streets and to otherwise use public right of ways. Section 10(a) of the Act permits cable operators to refuse to carry indecent speech on leased local access channels. Section 10(b) of the Act directs the Federal Communications Commission to adopt rules requiring operators who choose to carry indecent programming on local access channels to place the programs on a separate channel and to block the channel until the subscriber, in writing, requests unblocking. Section 10(c) permits cable operators to refuse to carry indecent speech on public, educational, or governmental channels.
A combination of groups that produce and watch local access programming challenged the Act and the FCC regulations implementing it on First Amendment grounds. The groups argued that the Act and regulations unconstitutionally censored indecent speech. A panel of the District of Columbia Court of Appeals agreed with this argument and struck down the Act. On rehearing, however, the full court reversed and held that the Act was constitutional because it did not require censorship of indecent speech and because the blocking provisions were the least restrictive means of furthering the government's interest in shielding children from indecent programming.
When, as in this case, a governmental restriction of speech is based upon the content of that speech, the restriction can be upheld only if it constitutes the least restrictive means of advancing a compelling governmental interest. Sable Communications of Cal. v. FCC, 492 U.S. 115 (1989). In the broadcasting context, the least restrictive means analysis often involves determining whether the broadcasts are available to children, whether the type of broadcasting is pervasively present in society, whether the indecent material can "confront" the audience with little or no warning, and whether adults have other means to receive similar speech. See, e.g., FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

Congress in 1992 passed the Cable Television Consumer Protection and Competition Act, which required, among other things, that cable television systems carry local broadcast stations. Several cable operators filed suit, claiming that the legislation violated the freedoms of speech and of the press guaranteed by the First Amendment. In 1993, the district court held that the "must-carry" provisions of the Act were constitutional. On direct appeal, the Supreme Court, in Turner Broadcasting System v. Federal Communications Comm., 114 S. Ct. 2445 (1994), held that the "must-carry" provisions constituted a content-neutral regulation and could be constitutional. The Court then ordered the district court to determine whether the government could demonstrate that the provisions reasonably advanced an important governmental interest. On remand, a divided district court held that Congress had before it "substantial evidence" from which to conclude that the must-carry provisions were necessary to protect the local broadcast industry.
When examining content-neutral regulations, courts apply an "intermediate" level of scrutiny. Under this analysis, legislation that affects speech but that does not favor the message of one speaker over another can be constitutional if the legislation (1) furthers an important governmental interest and (2) does not burden more speech than necessary to advance that interest. United States v. O'Brien, 391 U.S. 367 (1968).

The Communications Decency Act of 1996 ("CDA"), 47 U.S.C. § 223, prohibits the transmission of indecent and patently offensive materials to minors over the Internet. A number of civil rights and computer groups challenged the constitutionality of these provisions on First Amendment grounds. In essence, these groups argued that the inability of Internet users and providers to verify the age of information recipients effectively prevented them from engaging in indecent speech, which traditionally has received significant First Amendment protection. After a lengthy evidentiary hearing that included many online demonstrations, a special three-judge district court (which was created by the CDA to hear the expected constitutional challenges) agreed with the groups and ruled that the provisions violated the First Amendment.
Indecent speech, unlike obscenity, is entitled to constitutional protection because it often has substantial social value and lacks prurient interest. Sable Communications v. FCC, 492 U.S. 115 (1989). This speech therefore cannot be regulated unless the restrictions are justified by a compelling governmental interest and are narrowly tailored to advance that interest. Turner Broadcasting System v. FCC, 114 S. Ct. 2445 (1994). The Court already has held that the government has a compelling interest in protecting minors from indecent speech. Ginsberg v. New York, 390 U.S. 629 (1968). The Court also has held that the government may prohibit dissemination of indecent materials to minors as long it does not at the same time prohibit dissemination to adults. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

Section 505 of the Telecommunications Act of 1996 requires cable television operators to "fully scramble or otherwise fully block the video and audio portion" of channels that provide primarily "sexually explicit adult programming." The act provides that cable operators can comply with _ 505 by showing the "indecent" or "sexually explicit adult programming" only during so-called safe-harbor hours, 10 p.m. to 6 a.m., when children are not likely to view the programming. In 1996, Playboy Entertainment Group filed suit in the United States District Court for the District of Delaware seeking to prohibit the enforcement of Section 505. After the three-judge panel denied Playboy's motion for a preliminary injunction, the U.S. Supreme Court in 1997 refused to review the denial of the preliminary injunction. On Dec. 28, 1998, the district court ruled that _ 505 violated the First Amendment. The court ruled the law was content-based because it restricted only sexually explicit adult programming. The government appealed to the U.S. Supreme Court.
Indecent speech, unlike obscene speech, is entitled to First Amendment protection. Government officials cannot suppress the free-speech rights of adults in order to protect minors from objectionable material unless the law is very narrowly drafted. Content-based laws are presumptively unconstitutional and the government bears the burden of showing that the law advances a compelling state interest in the least restrictive way.

Collectively, this bundle of rights, largely developed by U.S. Supreme Court decisions, defines the “freedom of the press” guaranteed by the First Amendment. What we mean by the freedom of the press is, in fact, an evolving concept. It is a concept that is informed by the perceptions of those who crafted the press clause in an era of pamphlets, political tracts and periodical newspapers, and by the views of Supreme Court justices who have interpreted that clause over the past two centuries in a world of daily newspapers, books, magazines, motion pictures, radio and television broadcasts, and internet content.